Capitol Square Review and Advisory Board v. Pinette

Capitol Square, is a ten-acre, state-owned plaza that surrounds the state capitol in Columbus, Ohio. The area was used frequently by various groups for displays such as nativity scenes. Use of the square was determined by a review board, which issued the permits. On November of 1993, after reversing a decision to ban holiday displays during December from Capitol Square, the board agreed to allow the state to put up its Christmas tree. Later, the board approved a rabbi's application to display a menorah. That same day, the board received a request from Donnie Carr, an officer of Ohio's Ku Klux Klan, to erect a cross on the square during the holidays. The board denied the request citing the Ohio and U.S. Constitutions ban on governments endorsing religion.

Two weeks later, the Ohio Klan's leader Vincent Pinette, filed suit in the U.S. District Court for the Southern District of Ohio, seeking to force the board to issue the permit. The board argued that it had denied the permit because of the Establishment Clause. The district court ruled that since the square was opened to all and that the Klan's cross was protected private expression, the board had to issue the permit. The district court issued the injunction and the board's request for emergency stay was denied. The board allowed the Klan to display its cross. It received and granted several permits to display crosses on Capitol Square during December of 1993 and January of 1994. The board appealed to the U.S. Court of Appeals for the Sixth Circuit, which affirmed the district court ruling. That decision agreed with a ruling by the Eleventh District Circuit, but conflicted with rulings in the Second and Fourth Circuits. The U.S. Supreme Court granted certiorari.

In writing for the majority Justice Scalia stated that the board relied on County of Allegheny v. ACLU (1989) and Lynch v. Donnelly (1984), but that both those cases were different from Capitol Square Review. In Allegheny, the Court ruled that the display of a privately-sponsored creche on the grand staircase of the Allegheny County Courthouse violated the Establishment Clause. That staircase, Scalia reasoned, was not open to all on an equal basis, so the county was in that case favoring sectarian religious expression. In Lynch, the Court ruled that the city's display of a creche did not violate the Establishment Clause because it did not endorse an established religion. Petitioners argued that because the cross was displayed so close to a symbol of government, that it could be mistaken as religious expression endorsed by the government, which they argued was a clear violation of the Establishment Clause. However, Scalia dismissed that argument. He wrote: "That proposition cannot be accepted, at least where, as here, the government has not fostered or encouraged the mistake." He further reasoned that it would have "radical implications for our public policy to suggest that neutral laws are invalid whenever hypothetical observers may--even reasonably--confuse an incidental benefit to religion with state endorsement." Scalia concluded that "Religious expression cannot violate the Establishment Clause where it is (1) purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms."

Justice O'Connor in a separate opinion, joined by Justices Breyer and Souter, agreed with the majority conclusion, but offered a different analysis. Justice O'Connor reasoned that it is not unreasonable for a governmental body to protect itself against the mistaken assumption that privately expressed speech or symbols were endorsed by the government. O'Connor along with the other concurring justices concluded that the city of Columbus could have excluded the cross from the public square if they feared the message would have been attributed to the city. However, the justices did not view such a mistake possible in this case. Justice O'Connor explained that cross was on a public square and not on government property.

In this case, I believe, the reasonable observer would view the Klan's cross display fully aware that Capitol Square is a public space in which a multiplicity of groups, both secular and religious, engage in expressive conduct . . . Moreover, this observer would certainly be able to read and understand an adequate disclaimer, which the Klan had informed the state it would include in the display at the time if applied for the permit. On the facts of this case, therefore, I conclude that the reasonable observer would not interpret the State's tolerance of the Klan's private religious display in Capitol Square as an endorsement of religion.

Justices Stevens and Ginsburg each filed separate dissenting opinions. Justice Stevens concluded that a violation of the Establishment Clause occurred when "some reasonable observers would attribute a religious message to the state." Justice Ginsburg reasoned that a disclaimer would not have removed the question of a government endorsing a religion. Ginsburg wrote: "Whether a court order allowing display of a cross, but demanding a sturdier disclaimer, could withstand Establishment Clause analysis is a question more difficult than the one this case poses."